Clerks Laud Gorsuch Despite Red Ink Spilled on Drafts

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By Melissa Heelan Stanzione

Former clerks of U.S. Supreme Court nominee Neil M. Gorsuch describe a painstaking craftsman of opinions, but also an open-hearted and open-minded man who doesn’t forget to save time for family and fun.

President Donald Trump announced the evening of Jan. 31 that Tenth Circuit Judge Gorsuch was his pick to succeed Justice Antonin Scalia, who died last year.

Open-Minded

Joshua R. Goodbaum worried he would be a “black sheep” in chambers if he clerked for Gorsuch because Goodbaum is a Democrat, “progressive on a fair number of issues and openly gay,” he said.

Goodbaum, an employment and civil rights attorney at Garrison, Levin-Epstein, Fitzgerald & Pirrotti P.C., New Haven, Conn., clerked for Gorsuch from 2009-2010.

Gorsuch was nominated by President George W. Bush to the U.S. Court of Appeals for the Tenth Circuit in 2006.

Before accepting the clerkship, Goodbaum spoke with Gorsuch about his concerns.

“I told him I don’t want to be uncomfortable in chambers because” he was a George W. Bush appointee and “because the judge and all the other clerks thought one way and I thought another,” Goodbaum said.

Gorsuch, however, was “extremely reassuring,” he said.

Gorsuch told him that he “didn’t care about stuff like that” and that he just wanted him to do a good job, Goodbaum said.

“It ended up being a very positive” experience, Goodbaum said.

In the week before Goodbaum’s marriage in 2014, he had a “heartfelt conversation” with Gorsuch, who gave him advice about marriage and expressed how happy he was for Goodbaum.

Gorsuch “demonstrates tremendous care with everything he puts out in the world,” Goodbaum said.

Edits Galore

This includes his opinions, for which he is highly respected. Gorsuch is an “outstanding writer” with an “extremely high” standard, Goodbaum said.

It’s not uncommon “to go through dozens of drafts” of an opinion before the final one, he said.

Gorsuch is a “heavy editor,” Katherine C. Yarger told Bloomberg BNA.

Yarger is an attorney with Gibson, Dunn & Crutcher LLP in Denver, whose practice includes appellate and constitutional law. She also clerked for Gorsuch from 2009-2010.

He has a “very careful, detailed, in-depth approach to drafting,” she said.

The first few times former clerk Jason C. Murray got a red-line back from a draft he wrote for Gorsuch, “there may have been three words that remained black.”

Murray clerked for Gorsuch from 2011-2012. He is now an attorney with Bartlit Beck Herman Palenchar & Scott LLP, Denver.

Writing Process

A clerk will write the first draft based on the decision and reasoning Gorsuch prescribes, Goodbaum said.

Clerks spend a lot of time outlining the opinion and shaping the argument with Gorsuch “before putting the pen to the paper,” Murray said.

After a clerk submits the draft, Gorsuch “completely rewrites” it, Goodbaum said.

Gorsuch uses the first draft as a “mentorship tool” because it’s valuable for the clerks “to go through that process,” Murray said.

Different judges lean on their clerks to different extents and Gorsuch values their feedback immensely, “but the writing is his,” he said.

You can tell because he has a “very unique voice,” Murray said.

Understanding Gorsuch’s style and his mannerisms helps with the editing process, Goodbaum said.

As the clerkship goes on, “you become a better writer,” he said.

You get to understand the basic rules he has for writing, Goodbaum said.

These include having a topic sentence for every paragraph and making the affirmative case for your position before you turn to the counter-arguments, he said.

Behind the Scenes

Writing for Gorsuch is “a very good experience for a young lawyer,” Yarger said.

He is “incredible at distilling a legal issue to its core,” she said.

Although his writing is “formal” and “analytically rigorous,” he’s able to combine this style to tell a story, “using language that’s accessible to people of all different backgrounds and education,” Yarger said.

Gorsuch’s hiring practice might help explain his broad writing appeal.

He hires clerks “of all political stripes,” Murray said.

Gorsuch wants his clerks to disagree with him. He doesn’t want “to surround himself with people who are going to tell him what he wants to hear,” he said.

He wants people who will push back and show him how his initial instincts in a case could be wrong, Murray said.

Gorsuch might change his mind as a result but at a minimum, it helps him to fully account for all the counter-arguments to his position, Murray said.

Competitive, Fun

Clerking for Gorsuch is not all about editing.

Gorsuch loves to see his clerks having fun and getting excited about things not involving the law, Yarger said.

Every year, current and former clerks for Gorsuch and Timothy M. Tymkovich, chief judge for the Tenth Circuit, take a ski trip to Breckenridge, Colo.

On Yarger’s trip, Gorsuch’s competitive side revealed itself, she said.

When Gorsuch heard that Yarger has been skiing since she was three years old, he made sure she was right by his side on the difficult terrain.

Gorsuch has a “friendly competition” with Tymkovich, Yarger explained.

It’s as though he’s saying “my clerks are more than just smart, they’re good skiers too,” she said.

The trips are “so fun” but also build camaraderie between the chambers, Yarger said.

It was very important for Gorsuch “that we were respectful and collegial to” all other clerks on the court, she said.

Decent Guy

The judge embodies this respect in his personal life and work, Murray said.

He’s the “consummate gentleman” and will always be the last through the door, he said.

“What I admire the most” about him “is how he prioritizes his family,” Yarger said.

He works incredibly hard but is still able to be involved in his daughters’ and wife’s lives on a daily basis, she said.

Murray—who calls himself “a liberal on most issues”—said Gorsuch is an “incredible pick for the Supreme Court.”

He reaches his results when writing opinions “with the utmost thoughtfulness and integrity” and “doesn’t use his position to advance politics,” Murray said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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